How to calculate whether to work overtime in the comprehensive working hours system for special types of work?

Xiao Li is the security guard of the residential property company. The labor contract signed with the company is a comprehensive working hour system. Xiao Li often works 1 1 hour a day, and sometimes he has to work on Sundays, but he has never been paid overtime by the company. After a labor dispute with the company, Xiao Li asked the company to reissue his overtime pay for several years. The court investigation found that the property company implemented a comprehensive working hour system for security guards and regularly arranged security guards to take turns to rest. Xiao Li's actual working hours did not exceed the legal standard working hours.

Article search: China's labor law was promulgated before the implementation of the five-day week. Article 36 stipulates that the state practices a working-hour system in which laborers work no more than eight hours a day and no more than 44 hours a week on average. Article 39 stipulates that if an enterprise cannot implement the provisions of Articles 36 and 38 of this Law due to its production characteristics, it may, with the approval of the labor administrative department, take other measures for work and rest.

The comprehensive working hour system refers to the working hour system that comprehensively calculates working hours with weeks, months, quarters and years as cycles. In the comprehensive calculation period, the actual working hours of a specific day (or week) can exceed 8 hours (or 40 hours). Flexible working hours system refers to the flexible working hours system adopted by employees who cannot work according to the standard working hours due to the production characteristics of enterprises, special work needs or scope of responsibilities, or need flexible working hours due to irregular working hours. During the standard working hours, workers who implement the standard working hours can arrange normal work before going to work, after work and on vacation.

Therefore, whether it is a comprehensive working hour system or an irregular working hour system, there is no need to work 8 hours a day and rest on weekends. Workers in special positions who perform the above two special working hours, even if they work more than 8 hours a day and go to work on weekends, may not be able to claim overtime pay from the employer like ordinary workers who adopt the standard working hours system.

The judge suggested that the employing unit that implements the comprehensive working hours system or the irregular working hours system can only agree with the workers to apply the standard working hours system without the approval of the labor administrative department. Even if it is approved, it is only the premise that the special working hour system can reach an agreement with the workers. If a special working hour system is implemented, workers must be informed in advance and determined through consultation.

Myth 2: There is no overtime pay for special work.

Xiao Zhang is the driver of a unit leader. When signing a labor contract with the unit, it is agreed to implement the flexible working system. Xiao Zhang picks up the leader every day, and the leader will also inform him to leave the car if something happens. Several years have passed, and Xiao Zhang has never received overtime pay. After Xiao Zhang took the unit to court, the court found that Xiao Zhang did work more than 40 hours a week, and the judgment unit paid overtime for the part of Xiao Zhang that exceeded the standard working time.

Article search: Article 8 of the Measures for Beijing Enterprises to Implement Comprehensive Working Hours System and Flexible Working Hours System stipulates that the actual working hours on a specific day (or week) during the comprehensive calculation period may exceed 8 hours (or 40 hours), but the total actual working hours during the comprehensive calculation period shall not exceed the total legal standard working hours, and the excess shall be regarded as extending working hours and paying labor remuneration in accordance with the provisions of Article 44, paragraph 1 of the Labor Law.

The comprehensive working hours system only calculates working hours by week, month, quarter and year, but its daily average working hours and weekly average working hours should also be the same as the legal standard working hours; If the actual total working time of workers in special posts exceeds the total working time of legal standards during the comprehensive calculation period, the workers can get 150% overtime pay for the excess.

The judge suggested that the comprehensive working hours system and the irregular working hours system should be implemented, the employer should negotiate with the trade union, the workers' congress or the workers, and the work and rest system of the enterprise should be publicized to the workers. If the employer fails to agree on the working hours system for the workers, fails to publicize the positions and time limits for implementing the special working hours system to the workers according to law, and the workers demand to pay overtime wages according to the standard working hours system, and the employer refuses to pay, the workers may bring arbitration and litigation against the employer according to the standard working hours system.

Myth 3: As long as the time has passed, even if you work overtime.

Xiao Wang is the doorman on duty in a university dormitory, and signed a comprehensive working-hour labor contract with the university. He works in two shifts, and he can sleep after 1 1 at night. Because I often work the night shift, I can't rest on weekends. Xiao Wang claimed overtime pay from the unit, and the unit did not agree. The court investigation found that the doorman can rest at night and does not need to provide labor. Based on comprehensive calculation, Xiao Wang's total working hours did not exceed the legal standard time, so only the judgment unit paid Xiao Wang overtime pay on legal holidays, but not overtime pay and overtime pay on weekends.

Article 9 of the Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases stipulates that workers who advocate overtime shall bear the burden of proof for the existence of overtime facts. However, if the laborer has evidence to prove that the employer has evidence of overtime work, and the employer fails to provide it, the employer shall bear the adverse consequences.

In the trial practice, the standard of determining the fact of overtime needs to emphasize the effectiveness and passivity of overtime, that is, overtime must be an effective process of providing labor or recognized behavior. The existence of effective overtime cannot be recognized if the laborer voluntarily requests to extend the working hours and the employer does not arrange overtime for him. If the unit obtains the consent of the laborer to extend the working hours, it shall be deemed that the laborer has worked overtime. It is not feasible to think that workers can get overtime pay as long as they stay in the workplace for more than the total time of the comprehensive working hours system.

The judge suggested that although it is necessary to review the effectiveness and purpose of overtime work for workers in special positions, as long as the workers can provide evidence that overtime work does occur and is not voluntary, they can provide evidence such as attendance sheets, handover records and witness testimony to prove the effectiveness of overtime work; To this end, overtime notice, overtime approval form and so on can be provided.